GES.

As to measures of damages in an action for Where possession has passed and continued setting back water by a mill dam, see DAMA. without eviction, there is no case for relief.

Ib. EJECTMENT.

An agreement for the sale of a portion of the

real estate having been made by the trustees, a A command in a writ of possession to return suit in equity to rescind the agreement can be it within sixty days is directory only. The office maintained as an action to recover money paid of the writ is to carry the judgment into eff:ct upon a consideration which has failed, the title and can

be executed after the return day. not being such as the purchaser is bound to Whitbeck v. Van Rensselaer et al.

20 accept. Bruner v. Meigs et. al. trustees. 553 A failure to remove the personal property

As to what cases constitute grounds for relief does not vitiate the execution of the writ, provi- coming under distinct heads of equitable juris. ded the possession is delivered.

Ib. prudenco, see those titles, chiefly FRAUD ; IN:

JUNCTION; MORTGAGES : PARTNERSHIP; SPECI. A re-entry by the tenant will not enlarge the FIC PERFORMANCE. time for redemption.

1b.

As to when equity will relieve against forfeiIn ejectment, the value of the land is immate ture for breach of covenant in lease, see LANDrial. Sullivan v. Vail.

110 LORD AND TENANT.

TICE.

Covenants in a lease that if lessee keeps his

ESTOPPEL. covenants lessor will, at expiration, pay lessen value of any buildings that he may erect on de. The fact that interest has been paid and a mised property, do not prevent lessor from in special tax voted to meet the fature interest stituting summary proceedings against lessee

upon void bonds, does not estop a municipal corfor non-payment of rent. Paine v. The Rector: poration from denying the validity of the bonds. &c., of Trinity Chureh. 214 Weismer v. Village of Douglas.

50 As to evidence in ejectment, see EVIDENCE. A doubtful or disputed boundary line may be As to practice in ejectment suits, see Prac- agreed upon by parol; and a party so agreeing

is afterwards estopped from denying the same,

if the other, relying upon it, erects improveEMBEZZLEMENT. ments. Burt v. Creppel.

249

The fact that a surety stands by and sees the Evidence showing that an employer, being holder of his obligation do something which suspicious that some one was embezzling his will discharge him from his contract, without inoney, caused one of his customers to mark declaring that he shall consider himself dissome money with which to pay his bill, that a charged if tl:e act is done, does not estop him clerk collected the bill and divided the money from setting up and relying upon such act as a with the accused, and that the money was found discharge. He is not bound to warn the parties on the latter when arrested, is sufficient to es of the consequences of the alteration of the contablish the crime of embezzlement. In the mat-tract. Polak v. Everett.

385 ter of Swan.

114

A certificate signed by a mortgagor making EMINENT DOMAIN.

certain declarations with reference to the validi.

ty of the mortgage is no estoppel as against the As to damages for taking lands for public use, mortgagor, where it is not taken in good faith, see AWARD.

and reliance placed on its statements, and evi.

dence is always admissible to show whether it ENDORSERS.

was so taken. Dinkelspiel et al. v. Franklin et al.

396 See NEGOTIABLE PAPER.

Accommodation endorsers are not estopped

from interposing defence of usury, although the EQUITY.

maker has executed a writing which estops him. Meeker v. Gaylord et. al.

441 Money paid for land purchased at an auction sale may be recovered back upon the discovery

Where a party authorizes his warehouseman that the grantors in the deed could not give a to deliver a receipt for gowls to one to whom he valid title to the premises. Brunner v. "Meigs has sold them, he is estopped from claiming pay. et al. trustees, &c.

70-533 ment as a condition precedent to parting with

the title, as against one who has advanced An action by the people will not lie to set money to the vendee, relying on the receipt as aside, or restrain the enforcement of an award showing title in such vendee. Vorhees et al. v. made by the canal appraisers. The People v. Olmsteud et al.

449 Wasson. impld., &c.

104

Where a person really having the title to Where the title to real property fails, a pur- land, aliows another having the apparent title chaser without covenants, 'no' fraud or deceit to go on anı! do certain acts, such person is being alleged, has no remedy in equity to re-estopped from questioning such acts. O'Doughcover the price. Whittemor v. Furrington. 446 Jerty v. Remington.

461

76

A sheriff may be estopped from setting up evidence of the nature of the suits could not be
claims to property he has levied upon by execu: given is not available on appeal. Mpy v.
tion, by his acts and declarations inconsistent The People.

57
with the levy. Clark v. Hodgkins.

509

A statement made by the prisoner, shortly
The judgment of a court of competent juris. after the murder, and while he was in custody

ction upon a question directly at issue between of the Sheriff, in response to the question, " do
the parties, unless reversed, forever concludes you desire to make any statement,” is volun.
and estops all parties to the action, and those in

tary.

10
privity with them, from questioning its accura-

Parol evidence of a consideration not men-
cy or justice in another action. The People v. tioned in a deed, if it be not inconsistent with
Stephens et al.

515 that expressed, is admissible. Taylor et al. v-
Preston.

68
Where a contract has been obtained by fraud
or an illegal combination, the party for whom

The burden of proof is upon an assignee of a
the work is to be done cannot insist upon its debt, to establish that the debtor was notified of
performance, voluntarily and with full know- the assignment in order to protect himself
ledge pay the stipulatsd price, and then in an against payment to the assignor. Heermans,
action recover his damages.

Ib,

trustee, v. Ellsworth.
A party having, for a valuable considerati on In an action upon a note where the defense is
given another the right to run pipes over his forgery, other notes and checks of defendants,
land for the purpose of conveying the water of a tending to connect defendant with the origin of
brook, is estopped from questioning such other's the debt for which the note in suit was given
right to such water. But where a party lays are admissible in evidence. Marks v. King.
certain sized pipes and uses them for some time,

79
he cannot replace them by larger ones without
being liable for damages for excess of water Whare a former judgment is pleaded in bar,
taken. Outhank v. The L. S. & M. S. R. R. Co. extrinsic evidence that the claim in suit was not

557 included in the judgment is admissible. Kerby
v. Daiy.

102
Where insured has knowledge of the limi.
tation of an agent's authority, he is estopped

Evidence that warrants were issued for legal
from claiming that the agent could contract claims against the county, is admissible so long
with him so as to change the terms of the policy as the bonds were invalid for want of a seal.
or waive performance of its conditions. Mersea Smeltzer v. White.

106
rau v. Phønix Life Ins. Co.

584

Diary of physician cannot be offered in evi.
See ADVANCEMENTS,

dence without couforming to the rule relative

to books of account. Knight v. Cummington et
As to estoppel from claiming for extra work al., admrs.

116
under a contract, see CONTRACT.

In an action by a bank against A to recover a
EVIDENCE.

balance due on an ov erdrawn account standing

in the name of B, parol evidence tending to
Defendant's admissions of debt in prelimin- show that A was the real borrower, is admissi.
ary examination do not conclude him under a ble. Lefevre v. The Farmers & Mechanus Bank
subsequently amended answer from showing of Shippensburg.

129
that the debt never in fact existed. The New

York Dyeing and Printing Establishmont v. Books produced on notice by opposing counsel
Berdell.
12 are competent as evidence. Mitchell v. Bunn.

149
Introduction of individual's private books and

Wl.jre one of a set of books, containing en-
papers by one side renders them competent as tries in brief and referring to other books for a
evidence for the other side.

.

fuller explanation, is received in evidence, it is
Where there are slight circumstances tend competent to refer to the entries in such other
irg to establish the bad faith of a purchase, it books referred to, and such entries are compe-

".
cannot be said by an Appellate Court that it tent evidence.
was not sufficient for the purpose. Salamon v.

Where the books of defendant's firm, in which
Van Praag.

28

is an item debiting plaintiff with the note in
ln an action against the vendor to recover suit, is introduced in evidence to charge defend-
brokerage on a sale of real estate, evidence that ant wiil personal knowledge of its issue, it is
plaintiff' was acting in the interests of the buyer competent for him to testify that he liad no such
is admissible. Miller v. Irish et al.
49 kuowledge at the time, or until long afterwards.

3.
Upon the trial of an indictment for murder,

Where a person stands by and overhears a
it is competent for the prosecution to show, as
bearing upon the question of motive, that de- / wife it is not a personal one under the statute.

conversation between a deceased person and his
ceased had attended court several times with

Benedict v. Phelps.

150
party against whom the prisoner was prosecu-
iing several suits, and the objection that parol In an action for malicious prosecution evi-

a

dence of plaintiff's sufferings from cold, hunger, allow the plaintiff as a witness in the case, to
&c., in the prison is admissible, and the jury show that the testator had not paid a promis-
should consider them in assessing damages. sory note in his life time. Howell v. Van Sick-
Abrahams v. Cooper.
155 len, exr., et al.

273
Parol declarations are admissible as againist And in the case where the question is per-
an alleged vendor, and his heirs and gran. mitted under objection and exception, the court
tees, to prove that the vendee has paid tl:e pur will reverse the judgment although the plain-
chase money. Chadwick v. Fannir

197 tiff might have safely rested his case without
the evidence.

Ib.
In an action of ejectment, evidence tending to
show an acquiescence in and practical location A party has a right before offering any evi-
of a boundary line for more than twenty years dence of his defense to stand upon his objection
is admissible, although such line is not the true and exception to illegal evidence, for the purpose
line described in plaintiff's grant. Jones et al. of having same stricken from the case. 16
v. Smith,

209

In an action upon a life insurance policy,
A witness being interrogated as to a conver where the defense is that the assured made false
sation with B., and B. being called, testified to

answers to questions is his application, the de-
a particular conversation with witness, the wit- fendant must prove their falsity; it is not for
ness can be recalled to deny specifically the al- the plaintiff io prove his answers true. The
leged conversation testified to by B. Ib. Piedmont & Arlington Life Ins. Co. v. Ewing,

admr.

276
Parol evidence of drafts lost or destroyed is ad
missible unless such loss or destruction was in In an action for rent, evidence of how defend.
tentional and fraudulent. Steele et al. v. Lord. ant occupied other houses than one in suit inad.
225 missible. Roberts v. Heap.

292
Proof of a custom is competent to explain the

The rules of evidence are entirely within the
conduct of parties to a contract. The Standard control of the legislature, which may make such
Oii Co. v. The Turnpike Ins. Co.

235 rules and regulations in regard thereto as it
deems best. Howard et ai v. Moot.

297
Judgment will be reversed on account of admit-
ting, under objection, parole vidence of a writing A will having been admitted to probate, it can
without satisfactorily accounting for its non-only be impeached by direct proof of incapacity,
production. Rostern v. Dodd.

239
as competency will be presumed until the con.

16.
Testimony of physicians as to knowledge of trary is shown.
diseases obtained in their professional capacity, In an action on a lease, when eviction is set
and necessary to enable them to prescribe, is in: up as a defense, evidence tending to show that
admissible. Dilleber v. Home Life Ins. Co. 240 the act constituting the eviction was done by the
Letters written by the assured are admissible lessor, and not a third party, admissible. Rich-

ards v. Carlton.

326
to show false statements, or concealment of facts
affecting his insurability, which he was bound In an action by the payee of a note against
to disclose,

Ib.

one of two makers, parol evidence is admissible
Under $399 of the code the owner of chattels to sho:v that defendant signed the note as sure-

335
is not permitted to prove by his vendor that a ty. Hubbard v. Gurney.
demand for the possession of such chattels was
made by such vendor as the agent of the owner shown by parol unless it appears that the as-

An assignment of a charter party may be
of the deceased partner of one in possession of signment was in writing. Philips v. Pace. 350
such chattels, Conway v. Moulton.
In an action on a note of $450, evidence that ficate of protest must be under a seal made by

To be admissible in evidence a notary's certi.
a short time prior the giving of the note the
payee stated lie was working for $1.50 per day, an impression directly upon the paper, or upon
and could not raise $100, was competent to raise wafer, was, or some similar substance, a mere
question of plaintiff's (the payee's) "bona fides." imprint is not sufficient. Richards v. Boller. 353
Nicholson v. Waful.

250 In an action for false imprisonment where ex.
Upon an issue as to whether defendant was the circumstances connected with the transac.

emplary or punitive damages are claimed, all
the owner of a stock of goods which he claimed tion tending to explain the motive of defendant,
he had sold by verbal agreement, conversations
between defendant and the alleged vendee, at

are admissible in evidence.

Voltz v. Black

355
the time the property was sold, are competent
evidence. Clark v. Donaldson.

258 Evidence that defendant's agent knowingly
Evidence improperly received must work an and incompetent is admissible on question of

employed a switchman who was intemperate
injury to justify a reversal.

Ib.

positive punitive damages. Courts rarely exer.
Where evidence which has been erroneously cise this right to grant a new trial on the ground
rejected is afterwards admitted the error is ob- of excessive damages. Cleghorn v. The Ñ. Y. C.
viated.

Ib.
and H R R R. Co.

358
It is an error under the 399th S of the code, to Authority by a father to a son to endorse notes,

mar.

mour.

&c., need not be expressly proved : it may be In an action upon a policy of fire insurance no proved by implication or custom. Abei v. Sey- objection having been made to the proofs of

301 loss either as to form, sufficiency, or time of ser

vice, but same baving been retained, these facts The range of evidence is necessarily very operate as a complete waiver of all objections to wide where the issue is fraud ; and the same the proof and of all other preliminaries. Brink latitude will be shown whether the testimony et al. v. Hanover Fire Ins. Co.

494 tends to establish or rebut the fact. Siewart v. Fenner.

402 Declarations of an agent of an insurance com

pany of the result of his investigations, are ad. A debtor conveyed all his real estate to his inisible in an action upon the policy. I. sister. The bona fides of the transaction being at issue, the sister offered to prove that after the When a verdict is directed for plaintiff on the conveyance she improved the property at her trial, it is unimportant to consider the excepown expense.

tions to evidence, if there be in fact such uncon. Held, That the offer should have been admit- tradicted, and unexceptionable evidence, that it ted.

Ib. was the duty of the court to direct a verdict

upon that alone. Parker v. McCunn, exr'x. et al. The provisions of $ 8, chap. 276, of the Laws

502 of 1832, are restricted by Sec. 399 of the Code. Alexander, ex r. v Dutcher.

415

Attorney for plaintiff has not, for that reason

alone, such interest as would exclude his testiEvidence to show that payment of money was mony as to admissions made by defendant's tesinvoluntarily is admissible where the fact is tator, under section 399 of the Code. material and is put in issue by the pleadings.

Letters of administration are not admissible to Scholey exr. v. Mumford et al.

419

show the death of the assured, in a suit brought Where a plaintiff proves a part of a transac. in an individual character.

Mutual Benefit Life tion, the defendant, even under a general denial, Ins. Co. v. Tisdale.

506 can prove the whole transaction. Manning v. Eckert et al.

420

When a party testifies that he has paid the

claim of a third person to other parties who had Evidence to repel a presumption is not evi. purchased it; it is not proper to ask such third dence to prove new matter.

10. persen how much he received from such party. Wintingham v. Dibbie, assigree.

512 When upon the trial at a circuit a circumstance or fact appears inconsistent with the de. Where the plaintiff belongs to the first class fence, evidence explanatory of such fact is pro- of preferred creditors, a queston as to how much per. Genet v. The Mayor, &c., of N. Y. 437 was paid upon claims in the second class is im

n at rial.

16 Evidence that the judgment debtor believed the note paid upon which judgment was recov Declarations of a party made before giving a ered, is competent upon the question of intent mortgage are admisible as evidence against him. in an action ty set aside an assignment by him Stoweli v. Hazlitt et al.

523 as fraudulent. Stacy recr. v. Desham et al. 468

The testimony oi a defendant given on a forThe value of the assigned property may al. mer trial of the same action may be given in ways be shown. 16. evidence against him.

13 Services are a good consideration for such an

Where the written contract of parties is apassignment.

16. parently incomplete, evidence may be given,

showing the further stipulation entered into by Admissions of the vendor made subsequent to them. Tracy et al. v. Watson.

524 the execution of the deed are competent to show fraud in the description. Beardsiey v. Duntley: the question at issue involves a peculiar science

Evidence of experts is only necessary when

or skill. But where the question is one involvA parol agreement between an ancestor and a ing merely matters of common sense, evidence third person by which, for a consideration, the of experis is incompeten!. Swartwout v. The N. former agrees to sell and convey certain real es

Y. C. & H. R R. R Co.

536 tate to the latter, when performed, binds the heirs of the vendor. Admissions of ancestors lowed to impeach a witness, unless some foun.

Evidence, although admitted, will not be alare admissible to establish such agreement. dation is first laid for it, by calling the attention Knapp v. Hungerford et al.

490

of the witness that is sought to be impeached to Declarations of a pastor are not competent the time when and place where the conversation evidence, unless he is shown to be the agent of occurred that is introduced as impeaching testithe society, and that such declarations are with mony.Gorgen v. Balzhous. r et al.

529 in the scope of his agency. First Unitarian So

Evidence that defendant had been accustomer ciely v Faulkner et al.

493

to keep a flagman at a crossing, although inThe presiding judge may exercise his discre competent, must be objected to, or it can propertion as to the order in which the evidence may ly be considered by the jury. Zimmer v, The N. be given. Ib | Y. C. & H. R. R. R. Co.

531

490

In an action for an alleged conversion of As to evidence in actions under the statute goods, where the defence is a sale of said goods, against innkeepers, see INNKEEPERS. and defendants rely upon a letter of plaintiff in

As to evidence on reference, see REFEREES. relation thereto, containing the words :~" By amounts received on account, $32,372.6:3," evi

EXAMINATION OF PARTIES. dence tending to show that this sum was an indebtedness of plaintiff to defendants in other

See PRACTICE. transactions, which he was willing to apply in payment for the goods, is material and admissi

EXCEPTIONS. ble, as it would destroy the effect of the acknowledgment in the letter as an admission of a

See PRACTICE. consummated sale, and the receipt of payments on account. Richard v. Wellington et ai. 5537

EXECUTION. When money is sued for as a loan, for which

an action to set aside a mortgage as void a receipt had been given, it is competent to for usury, if the plaintiff succeeds in obtaining show that it was not a loan, but a deposit for a judgment for relief and costs, an execution specific purpose. Southwick v. Mudgett. 541 against the body of the defendant is justifi.

able; the action sounding in tort, being based In action on a note it is competent to show a

on the fraud of the defendant. Bieler v. Reh. want of consideration. Ib.

100 Evidence is admissible to confirm oral testimony as to the terms of a contract. There is no

Under a mortgage upon railroad property, valid objection where an oral contract has been which purported to mortgage the income and made to prove that a memorandum of its princi- earnings of the road, the mortgagee has no

lien upon the income fund, which will prevent pal terms was made and read to the parties at the time. Lathrop et al. v. Bramhall. admr, et al. a judgment creditor from levying upon it under

an execution. Gilman et al. v. The Ill. & Miss. 545 Tel. Co. et al.

103 In an accounting between partners it is com petent to show by witnesses doing the same

An execution against the estate of a deceased kind of business as the partners, the amount of debtor is irregular and void unless the proper business done by such partners and the profits proc :edings as authorized by section 376 of the arising therefrom, as against one of the part code have been had, and a sale thereunder pa-

246 ners who kept the books of the partnership in ses no title. Wallace v. Swinton. so careless a manner that a proper accounting cannot be had from them. McCall v, Heditch. Chapter 295 of the laws of 1850, and section

558 376 of the code not being entirely repugnant, may both stand.

lb. In action for divorce on the ground of cruelty, bruis and marks observed and sworn to by EXECUTORS AND ADMINISTRATORS. witnesses are competent testimony in confirmation of the evidence given by the complainant. An executor cannot recover an award for land Berdel v. Berdel.

581 of the testator taken for public purposes unless Evidence of complainant's good character, her some right to the possession of the land, either

it appears by the will that such executor had character not being at issue, is ina Imissible. Ib. as trustee under the will or for the purposes of

13 An agent of an express company may receipt administration. Cashman, ex'p, v. Wood. for goods, and such agent's signature may be In the absence of such allegations in the comproved by some one who, in regular course of pl int, the complaint is deinurrable for the business, has received such receipts and knows reason that the land, or money awarded for it, such ag 'nt's hand-writing. Armstrong v. Ameri- is vested in the heirs at law of the testator. Ib. can Ex. Co.

585

In absence of proof to the contrary, adminisEvidence is admissible to show how a person tor is presumed to have paid only such debts as came to sign a contract in an unusual place or

we e properly proved. Harvey, adm'r, &e., v. what his relations were to the contract.

Hauck Burnham. v, Craighead et al. exrs. et al..

591

Special administrators appointed in another In an action by a wife for damages in conse state, should contest claims of creditor- being quence of the habitual intoxication of her hus- in that state, and not the general administrator band, caused by defendant selling him liquor, as here.

Ib. bearing upon the question of damages, it was proper to show any want of, and inability to, Release of a security does not affect the in. obtain employment, in consequence of his pre- debteduess it was given to secure. vious habits of intoxication. Roth v. Eppy. 596

An exec itor will not be surcharged, as reAs lo admissibility of exemplification of bank spects legaters and next of kin, with he cost of ruptcy record, see BANKRUPTCY.

a monument over his testator which is reason.

able, accords with the means and position of the As to granting new trial for improper admis- testator, and has been approved by the majority sion or rejection of evidence, or for verdict of said legatees and nest of kin, Estate of Bar. against evidence, see NEW TRIAL; PRACTICE.

clay.

179

25

15.